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H1b approved via consular processing

Newark, DE |

Hi,
My wife is in US on H4 Visa.
She got her H1B approved via employer A through consular processing.
Can she apply for change of status from H4 to H1B through another employer D using the same approved H1b petition and will this be cap-exempt so that she does not have to leave USA and go to our home country for visa stamping ?

Attorney Answers 4


  1. Once she is approved for consular processing no not really. USCIS may have felt she was out of status for a bit and not in "authorized stay" and therefore she was approved for the petition but not for the extension of status or change of status and therefore she needs to go for visa stamping. By porting (moving) to new H-1B employer is not going to cure that previous problem. In so far as CAP vs NON CAP. If you are working at a NON CAP and you transfer to another NON CAP company/employer you are not subject to the CAP otherwise you will be.


  2. I agree with my colleague.

    The answer provided here is general in nature and does not take into account other factors that may need to be reviewed for a more precise answer. You should consult with an immigration attorney before taking any action. The answer here is not intended to create an attorney-client relationship.


  3. It depends on why the current H-1B was approved with consular processing.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.


  4. Was she abroad when the employer sought consular processing? If she has always maintained her status then change of status is possible; but the company's immigration attorney will be in a better position to answer that after careful review of your case.

    This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.

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